R v Wayne Michael Connors

[2012] ACTSC 80

HUMAN RIGHTS ACT

R v WAYNE MICHAEL CONNORS
[2012] ACTSC 80 (28 May 2012)

CRIMINAL LAW – bail – conditions of bail – urinalysis – objectives of bail – application to delete portion of bail condition requiring the accused to submit to urinalysis – whether requiring an accused person to submit to urinalysis is ancillary to a permitted objective of bail – whether the term “urinalysis” is ambiguous or meaningless – whether the grant of power to Corrective Services to require an accused person to submit to urinalysis is unnecessarily restrictive

HUMAN RIGHTS – limits applicable to the specification of bail conditions – whether there must exist grounds for suspicion of breach of bail condition to justify the intrusion upon an accused person’s privacy rights – whether primary bail condition is necessary having regard to the Human Rights Act2004 (ACT) – whether ancillary bail condition is justified in order to render primary bail condition effective

Bail Act 1992 (ACT), ss 25, 56A
Bail Act 1978 (NSW), ss 36, 37, 50
Road Transport (Alcohol & Drugs) Act 1977 (ACT)
Human Rights Act 2004 (ACT), ss 12, 28

Lawson v Dunlevy [2012] NSWSC 48
Wragg v State of New South Wales (1953) 88 CLR 353

No. SCC 310 of 2011

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              28 May 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 310 of 2011
AUSTRALIAN CAPITAL TERRITORY           )          

R

v

WAYNE MICHAEL CONNORS

ORDER

Judge:  Higgins CJ
Date:  28 May 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. Condition one of the accused’s bail conditions be amended by the addition of the words “if so directed in the course of supervision by an officer so authorised by the Director-General.”

1. The accused, Mr Connors, was initially granted bail upon conditions which included a requirement that he “accept the supervision of the Director-General of ACT Corrective Services and obey all reasonable directions.”  On 19 March 2012, I added to that condition the words “including submit to urinalysis.”

1. Mr Rutherford, on behalf of the accused, now asks for that portion of the bail conditions to be deleted.  The contention advanced is that the condition is beyond the powers conferred by the Bail Act 1992 (ACT) (“the Bail Act (ACT)).

1. That submission relied on a decision by Garling J of the Supreme Court of New South Wales in the recent case of Lawson v Dunlevy [2012] NSWSC 48 (“Lawson v Dunlevy”).

1. In that case, the condition under consideration, which had been imposed in support of a condition that the person admitted to bail, Mr Lawson, abstain from the consumption of intoxicating liquor, was that he submit to breath analysis if so required by a police officer. It was agreed that such a condition was commonly imposed in the Local Court by magistrates and by authorised officers granting conditional bail where, in order to avoid further offending, it was considered necessary that abstinence from alcohol be required.

1. It was accepted by his Honour that…